At trial, the state introduced a
record of defendant's felony conviction for forgery. Defendant testified that,
at his sentencing for the forgery conviction, the judge "explained to me
that as of my two-year probation he was sentencing, I would be considered a
misdemeanor, my charge would be considered a misdemeanor." The order from
defendant's sentencing, which was admitted at trial, stated, "MISD. TREAT.
ON COMPLETION OF PROBATION[.]" Defendant completed his probation in May
2006 and testified that he did not believe he had a felony on his record when
he tried to purchase the gun.

Defendant asked the court to instruct
the jury that, in order to convict him of attempted felon in possession, the
jury had to find that he knew he was a felon at the time he attempted the
purchase. The trial court denied defendant's request. The jury acquitted
defendant of unlawful purchase of a firearm and convicted him of attempted
felon in possession. The former crime has a specified culpable mental state:
a person commits the crime only if "the person, knowing that the person is
prohibited by state or federal law from owning or possessing the firearm * * *
purchases or attempts to purchase the firearm." ORS 166.425(1). The
felon in possession statute, as noted above, does not specify a culpable mental
state.

On appeal, defendant renews his
argument. The state responds that, although the reasoning and analysis in Van
Norsdall have been disavowed, its holding--that the state did not have to
prove that the defendant knew he was a felon--is correct and is still the law.
We agree with defendant.

"[a]n offense defined by a statute outside the Oregon
Criminal Code clearly indicates a legislative intent to dispense with any
culpable mental state requirement for the offense or for any material element
thereof."

Thus, if the statute defining an offense outside of the
criminal code does indicate a clear legislative intent to dispense with
a culpable mental state, no mental state is required. If the statute does
not clearly indicate a legislative intent to dispense with a culpable
mental state, then the statute is treated as though it is within the criminal
code. Jones, 223 Or App at 618. Statutes within the criminal code
that, like the felon in possession statute, contain no express culpable mental
state at all (as opposed to statutes that express a culpable mental state but
do not specify which elements it applies to), are governed by ORS 161.095:

"(1) The minimal requirement for criminal
liability is the performance by a person of conduct which includes a voluntary
act or the omission to perform an act which the person is capable of
performing.

"(2) Except as provided in ORS 161.105, a
person is not guilty of an offense unless the person acts with a culpable
mental state with respect to each material element of the offense that
necessarily requires a culpable mental state."

Our inquiry in this case, therefore,
moves through the following steps. First, because ORS 166.270 is outside of
the criminal code, we must decide whether it evinces a clear legislative intent
to dispense with a culpable mental state, or, in other words, a clear
legislative intent to establish a strict liability crime. ORS 161.105(1)(b).
We did not address that issue in Van Norsdall. Because, as explained
below, we conclude that there is no such clear intent, we must decide whether
the element of being a felon is a "material element of the offense that
necessarily requires a culpable mental state." ORS 161.095(2).

II.
DID THE LEGISLATURE CLEARLY INTEND TO DISPENSE
WITH ANY CULPABLE MENTAL STATE REQUIREMENT?

By its terms, ORS 161.105(1)(b)
directs us to determine whether a statute contains an implicit culpable mental
state by discerning the statute's underlying legislative intent. In doing so,
we deploy the usual techniques of statutory interpretation: examination of
text and context, as well as recourse to legislative history and, if necessary,
maxims of construction. State v. Gaines, 346 Or 160, 170-71, 206 P3d
1042 (2009). However, our inquiry into the felon in possession statute is
itself informed by the legislative intent underlying the statute that directs
us to consider legislative intent--that is, ORS 161.105(1)(b). In other words,
in analyzing the felon in possession statute, we are governed by ORS
161.105(1)(b), which instructs us that we are not only looking for indications
of what the legislature intended when it enacted ORS 166.270(1), but for clear
indications. State v. Eyerly, 37 Or App 399, 402, 587 P2d 1039 (1978)
("To determine the elements of and possible punishment for an offense
defined outside the Criminal Code, it is necessary to consider both the statute
defining the offense * * * and the general criminal liability statute[s].").

ORS 161.105(1)(b) was part of the
Oregon Criminal Code revision of 1971, and the Commentary to that Code--"a
rich source for determination of the drafters' intent," State v. Garcia,
288 Or 413, 416, 605 P2d 671 (1980)--called the culpability provisions
"[p]erhaps the single most basic part of the Code," and explained:

"The Commission follows the Model Penal
Code in expressing a policy adverse to use of 'strict liability' concepts in
criminal law, whenever the offense carries a possibility of sentence of
imprisonment.

"This position relates not only to offenses
defined by the criminal code itself, but covers the entire body of state law,
so far as penal sanctions are involved. As noted by the Model Penal Code
commentators, in the absence of minimal culpability, the law has neither a
deterrent nor corrective nor an incapacitative function to perform."

Commentary to Criminal Law Revision Commission Proposed
Oregon Criminal Code, Final Draft and Report § 11(C) (July 1970). In
construing the felon in possession statute, then, we must give effect to the
overarching legislative bias against strict liability crimes.

The text of ORS 166.270(1) (set out
at note 1, above) provides no indication, much less a clear indication, of an
intent to dispense with a culpable mental state. "The mere enactment of a
crime without an expressly required culpable mental state is insufficient to
establish such a clear indication." State v. Cho, 297 Or 195, 201,
681 P2d 1152 (1984). Nor does the statute provide an affirmative defense for
lack of notice, a feature that the court has identified as one indication that
the legislature intended that the state, in its case-in-chief, need not prove
any culpable mental state. State v. Buttrey, 293 Or 575, 583-84, 651
P2d 1075 (1982). The Supreme Court has also noted that the legislature is more
likely to dispense with a culpable mental state with respect to one element if
other elements carry express culpable mental states, because doing so does not
result in a strict liability offense. State v. Irving, 268 Or 204,
207, 520 P2d 354 (1974). That is not the case with ORS 166.270, which, as
noted, has no express scienter requirement at all.

The context of ORS 166.270 includes
statutes on a similar subject. PGE v. Bureau of Labor and Industries,
317 Or 606, 611, 859 P2d 1143 (1993). ORS 166.425(1) is such a statute. It
deals with the purchase of a firearm and makes that act unlawful depending on
the status of the purchaser, that is, on whether he or she is "prohibited
by state or federal law from owning or possessing the firearm." The
statute imposes an express knowledge requirement: The act is illegal only if
"the person, knowing" of his or her status, makes or attempts to make
the purchase. One inference that we can draw from this contextual statute is
that the legislature knew how to impose a culpable mental state requirement
when it so intended, and it did not do so in ORS 166.270. In light of the
overarching legislative preference against strict liability crimes, that
inference is a far cry from a clear indication.

"The present version of DUII had its
genesis in the 1975 Motor Vehicle Code, enacted only four years after the
Criminal Code. Or Laws 1975, ch 451, § 87. That the legislature reenacted the
definition of DUII so close after enacting ORS 161.105, while still omitting any
culpable mental state, also provides a proper basis for concluding that the
legislature did not intend any such mental element to apply[.]"

State v. Miller, 309 Or 362, 370, 788 P2d 974 (1990).

In light of earlier Supreme Court
cases demonstrating that the "clearly indicates" requirement and all
of the culpable mental state statutes should be stringently construed, Cho,
297 Or at 201, we believe that the legislative silence in Miller would
not have led to the conclusion that DUII was a strict liability crime had it
not been for another, overriding, factor--a factor that appears to be a
unifying theme in the Supreme Court's attempts to discern whether a particular
statute shows a clear indication to dispense with a culpable mental state.
That theme is this: The legislature is presumed to dispense with a culpable
mental state requirement where imposing such a requirement would result
in a statute that is extremely difficult to enforce. Put another way: The
Supreme Court seems to rephrase the question from, "Does this statute
clearly indicate the intent to dispense with a culpable mental state?" to,
"Could the legislature possibly have intended this statute to include
a culpable mental state?" Thus, the quoted text from Miller
regarding legislative silence is called an "additional consideration[ ]."
Id. at 369. The key paragraph in Miller, on the other hand,
explains:

"It seems preposterous that, with the
legislative effort to make DUII easier to prove in almost every session over
the last two decades, any legislator could ever have intended that a drunken
driver could assert the defense that 'I was so drunk I didn't know what I was
doing.' In these days of intense pressure on the legislature * * * to get
drunken drivers off Oregon highways, and the legislative actions reducing the [blood
alcohol content] level for conviction of drunken drivers in Oregon to one of
the lowest in the nation, it would be highly unusual for any responsible
legislator to intend or publicly assert an intention that DUII requires proof
of a culpable mental state."

Id. at 368-69. Earlier, in construing ORS 167.232
(1973), a statute creating the crime of "fraudulent sale of imitation
drugs * * * to a peace officer," the Supreme Court held that, even though
the statute did not express a culpable mental state, it would be absurd to
require the state to prove that the defendant knew that the purchaser was, in
fact, a police officer. Irving, 268 Or at 206-07.

Most recently, in State v.
Rutley, 343 Or 368, 370, 171 P3d 361 (2007), the court held that ORS
475.999 (1999) did not require the state to prove that the defendant knew that
his drug distribution took place within 1,000 feet of "the real property
comprising a public or private elementary, secondary or career school attended primarily
by minors." The court based its decision on three factors: "the
legislature's obvious intent to protect children from predatory drug dealers by
enhancing the penalty for delivery in the vicinity of a school, the grammatical
structure of the statute's text, and the nature of the element (no mental state
is logically required for a distance element)[.]" Id. at 377.
Clearly, the first factor alone could not be a clear indication of legislative
intent to dispense with a scienter requirement; if we could infer such
an intent from the seriousness of the legislature's desire to protect victims,
every criminal law would impose strict liability. Indeed, the court has always
indicated that the need for a culpable mental state requirement increases
with the seriousness of the crime and its consequences. E.g., Cho,
297 Or at 201 (state's substantial interest in enacting statute does not
clearly indicate intent to dispense with culpable mental state); State v. Wolfe,
288 Or 521, 525 n 3, 605 P2d 1185 (1980) ("The legislative history
indicates that the provision for offenses 'outside the Oregon Criminal Code'
was designed to * * * avoid strict liability for offenses potentially
punishable by imprisonment."). The more important factor, we surmise, was
the serious impediment to almost any enforcement imposed by a
"knowing" requirement for the 1,000 foot element:

"Defendant's argument, if it applies to the
1,000-foot element, applies equally to all [the elements]. Attaching a culpable
mental state of 'knowingly' to each of those requirements--a result that
defendant's argument would require--would enable a defendant to defeat the
charge by virtue of the state's inability to prove affirmatively defendant's
knowledge of the existence of the school, of the nature of the school, or of
the composition of the student body. We have no hesitation in concluding that
the likelihood that the legislature intended to require the state to prove a
defendant's culpable mental state as to that collectivity of school-related
requirements is virtually nonexistent."

Rutley, 343 Or at 376-77.

Requiring the state to prove that a
defendant accused of violating ORS 166.270(1) knew or should have known that he
was a felon would not eviscerate the statute or impede prosecution to the same
extent as requiring that a defendant knew he was selling drugs within 1,000
feet of a building that he knew was a school inhabited by what he knew were
minors (as in Rutley), or requiring that a DUII defendant know that his
blood alcohol content is .08 or greater (as in Miller). Rutley,
343 Or at 376; Miller, 309 Or at 368. That is because a defendant
cannot logically be expected to have measured his blood alcohol content or his
precise distance from a school. On the other hand, a defendant can
logically be expected to know--or to be remiss in not knowing--that he or she
has been convicted of a felony. Defendants can be presumed to have attended
their own trials and sentencing proceedings, and to have read (or been exposed
to) the charging instruments. Only in a rare case--such as, perhaps, this
one--could a defendant make even a credible argument challenging the state's prima
facie case. In short, this case more closely resembles Wolfe, where
the Supreme Court held that the state had to prove a culpable mental state to
convict an inmate for possessing a knife, and State v. Andrews, 174 Or
App 354, 27 P3d 137 (2001), where this court held that the state had to prove
that the defendant knew that the weapon he was carrying in a public place was loaded.
Especially in light of the emphatic legislative and judicial hostility toward strict
liability crimes, ORS 161.025(1)(d) (purposes of criminal code include to
"limit the condemnation of conduct as criminal when it is without fault");
Cho, 297 Or at 200 (noting "legal maxim" that "to punish
a person for a crime, the person must have acted with mens rea in
breaching the terms of an offense"); Andrews, 174 Or App at 363
(noting "the Criminal Code's fundamental hostility toward imposing
criminal liability without fault"), we conclude that, in enacting and
amending ORS 166.270(1), the legislature has never clearly indicated an intent
to dispense with a culpable mental state requirement with respect to a person's
status as a felon. We therefore must determine whether the state was required
to prove that defendant's status as a felon is a "material element of the
offense that necessarily requires a culpable mental state." ORS
161.095(2).

III.
IS DEFENDANT'S STATUS AS A FELON A "MATERIAL ELEMENT OF THE
OFFENSE THAT NECESSARILY REQUIRES A CULPABLE MENTAL STATE"?

As has often been noted, deciding
whether an element "necessarily requires a culpable mental state" has
long vexed Oregon courts. See,e.g., State v. Blanton,
284 Or 591, 595, 588 P2d 28 (1978) (the phrase "introduces a confusing
appearance of circularity"); State v. Rutley, 202 Or App 639, 643,
123 P3d 334 (2005), aff'd in part, rev'd in part, 343 Or 368 (2007)
("As the Supreme Court and this court have noted in somewhat more
euphemistic terms, that rule, which appears in no other state or federal
jurisdiction, is gibberish."); Andrews, 174 Or App at 361 (statute
has a "tautological quality").

Since we last construed the culpable
mental state statutes, ORS 174.020(3) and Gaines, 346 Or at 171-72, have
changed the courts' approach to statutory interpretation and now allow us to
consider a statute's legislative history and to give it the weight that we
consider appropriate. We now conclude that our previous understanding of which
material elements "necessarily require[] a culpable mental state"
needs to be modified.

In 1970, the Criminal Law Revision
Commission undertook a large scale revision of Oregon's criminal statutes,
including the statutes regarding when the state is required to prove a culpable
mental state. The resulting statutes were based on the Model Penal Code
(MPC). Commentary to Criminal Law Revision Commission Proposed Oregon Criminal
Code, Final Draft and Report § 11(C) (July 1970); State v. Crosby, 342
Or 419, 428, 154 P3d 97 (2007). MPC § 2.02(1) provides:

"Except as provided in Section 2.05, a person
is not guilty of an offense unless he acted purposely, knowingly, recklessly or
negligently, as the law may require, with respect to each material element of
the offense."

The MPC defines "element" of an offense as

"(9) * * * (i) such conduct or (ii) such
attendant circumstances or (iii) such a result of conduct as

"(a) is included in the description of the
forbidden conduct in the definition of the offense; or

"(b) establishes the required kind of
culpability; or

"(c) negatives an excuse or justification
for such conduct; or

"(d) negatives a defense under the statute
of limitations; or

"(e) establishes jurisdiction or
venue[.]"

Model Penal Code § 1.13(9). The MPC Commentary explains that
this definition of element "is useful for the purposes of the procedural
provisions, [but] it is obviously too broad for the purpose of the culpability
provisions." Model Penal Code § 1.13 comment at 211 (Official Draft and
Revised Comments 1985). For purposes of mental culpability, the MPC provides a
separate definition for material element:

"(10) 'material element of an offense'
means an element that does not relate exclusively to the statute of
limitations, jurisdiction, venue, or to any other matter similarly unconnected
with (i) the harm or evil, incident to conduct, sought to be prevented by the
law defining the offense, or (ii) the existence of a justification or excuse
for such conduct[.]"

Model Penal Code § 1.13(10). The MPC Commentary further
explains that

"[t]he term 'material element' is defined * * * to
encompass only matters relating to the harm or evil sought to be prevented by
the law defining an offense or to the existence of a justification or excuse
for the actor's conduct. Facts that relate to other matters, such as
jurisdiction, venue or limitations are not 'material' within this
definition."

Model Penal Code § 2.02 comment at 227. Thus, the MPC
clearly requires a culpable mental state for each element that relates to the
harm or evil sought to be prevented and does not require a culpable mental
state with elements pertaining to venue, jurisdiction, statute of limitations,
and the like.

The Oregon Criminal Law Revision Commission
adopted the MPC's approach, but the drafters were confused by the MPC's
separation of conduct, attendant circumstances, and end result. See
Model Penal Code § 1.13(9). This confusion is why the Oregon drafters settled
on language that is different from what is used in the MPC.

On December 12, 1968, the
subcommittee that was assigned to draft the culpable mental state provisions
met to discuss the first draft--Article 2 of the proposed criminal code. The
draft provided:

"Except as provided in Section 5 [relating
to offenses punishable by fines only], a person is not guilty of a crime unless
he acts intentionally, knowingly, recklessly, or with criminal negligence, as
the law may require, with respect to the conduct, the result thereof or the
attendant circumstances which constitute the material elements of the
crime."

Criminal Law Revision Commission Proposed Oregon Criminal
Code, Preliminary Draft No 1, Article 2, § 2 (Dec 1968). The terms
"conduct," "attendant circumstances," and
"result" came from the MPC § 1.13(9) set out above. Minutes,
Criminal Law Revision Commission, Dec 18, 1968, 2, 5. But, unlike the MPC, the
Oregon drafters did not define "element" or "material
element" in the first draft. They agreed, however, to define it later.

Because the first draft did not
include a definition of "element" or "material element," as
in the MPC, the members of the subcommittee became confused by the concept that
only certain conduct, attendant circumstances, or results could be considered
"material elements" and could, for that reason, require a culpable
mental state. As a result, the subcommittee seemed concerned that the language
of this draft expanded the definition of "material element" beyond
what was required under the MPC, and included all the facts related to a
particular incident, such as the time of day it occurred or who witnessed it.
Minutes, Criminal Law Revision Commission, Dec 18, 1968, 8.

One conversation among the
subcommittee members highlights this confusion. Senator John Burns, the
chairman of the subcommittee, understood "conduct" to include
circumstances explicitly described in the definition of a crime, and,
therefore, he believed that "attendant circumstances" were
circumstances other than those described in the definition of the
crime--he believed they were "collateral" events that did not need to
be proved beyond a reasonable doubt and did not require a culpable mental
state. Minutes, Criminal Law Revision Commission, Dec 18, 1968, 6; Tape
Recording, Criminal Law Revision Commission Subcommittee No 1, Dec 18, 1968,
Tape 29, Side 2. Professor Courtney Arthur, the drafter of the provisions,
tried to illustrate the difference between conduct and attendant circumstances
by explaining that, for the crime of statutory rape, sexual intercourse is the
"conduct" and the underage status of the victim is the
"attendant circumstance." Burns replied, "No. [Her age] is a
fact. It's not a circumstance. * * * The age is a material element. It's a
fact that has to be proved. It's not an attendant circumstance." Tape
Recording, Criminal Law Revision Commission Subcommittee No 1, Dec 18, 1968,
Tape 29, Side 2 (statement of Sen John Burns). Burns did not understand that
"attendant circumstances" could also be material elements that the
state was required to prove--he only understood "attendant
circumstances" to mean the circumstances surrounding how the crime was
committed as opposed to acts that were explicitly proscribed by the statute.

Other subcommittee members understood
that attendant circumstances could be, but were not necessarily, material
elements. For example, when Burns said that the underage status of the victim
in a statutory rape case was a fact that the state had to prove, and therefore
not an attendant circumstance, Don Paillette, the project director of the
revision commission, disagreed, saying that the underage status was both an
attendant circumstance and a material element. Id.

In order to alleviate the confusion,
Paillette suggested the subcommittee amend the draft as follows:

"Except as provided in Section 5, a person is not
guilty of a crime unless he acts intentionally, knowingly, recklessly, or with
criminal negligence, as the law may require, with respect to the conduct,
the result thereof, or the attendant circumstances which constitute theeach
material element of the crime."

See Minutes, Criminal Law Revision Commission, Dec 18,
1968, 6. Paillette explained that once "material element" was
defined in the code, the language would then require a culpable mental state
for each material element and, at the same time, would circumvent the confusion
regarding the phrase "attendant circumstance." The language of the
draft was then amended as Paillette suggested.

On March 4, 1969, the subcommittee
met to discuss the second draft of the general culpability provisions. As
amended at the prior meeting, Section 2(2) provided that "a person is not
guilty of a crime unless he acts with a culpable mental state with respect to
each material element of the crime." Criminal Law Revision Commission Proposed
Oregon Criminal Code, Preliminary Draft No 2, Article 2, § 2(2) (Feb 1969).
The new draft, again, did not define "element" or "material
element." Paillette explained:

"Of course, my feeling going back to the
minutes of that meeting * * * seems to me that the big hang up was this problem
'material element' of the crime, because the way it was drafted we were in
effect saying that conduct and attendant circumstances were material elements
and my feeling was that this was one of the things that was causing some
problems for the subcommittee. We were calling things material elements that
may or may not be material elements at least in the traditional definition of
the term. We felt we might be causing some problems if we were going to call
some attendant circumstance a material element and require the state to prove
something beyond a reasonable doubt. It might be beyond the ability of the
[prosecutor] because the nature of some attendant circumstance * * *. These
were pretty broad terms, so I tried to write that out of the draft. And in
effect not define material elements."

One member asked what they should do
if they do not define element and material element. Paillette explained that
"we know what they mean anyway" and that courts handle these
questions all the time:

"See, in a criminal case now, the court
will instruct the jury on the material elements of the crime and the burden is
on the state to prove each material element beyond a reasonable doubt. The
court will in fact say, and in this crime of larceny, the elements are that he
took and carried away the personal property of another etcetera * * * and, I
don't know, it just doesn't seem that this has been a problem for the courts to
distinguish what's a material element and what isn't."

Id. He further explained that, because he was using
"material element" in the "traditional" sense, there was no
further need to define the term.

The final concern at the second
meeting was whether venue, jurisdiction, and the statute of limitations would
be considered material elements, thereby necessitating proof of a culpable
mental state. Paillette assured the committee that they were not, and that the
final draft would reflect that. Id. That response implies that the
"traditional" definition Paillette was referring to was the MPC
definition of material element--that is, matters relating to the harm or evil
sought to be prevented as opposed to matters, such as jurisdiction, venue, or
limitations. See Model Penal Code § 1.13(10).

On April 18, 1969, Paillette
presented the third and final draft of the general culpability statutes to the
subcommittee. Section 2(2) had been amended to its current version:

"[A] person is not guilty of a crime unless
he acts with a culpable mental state with respect to each material element of the
crime that necessarily requires a culpable mental state."

Criminal Law Revision Commission Proposed Oregon Criminal
Code, Preliminary Draft No 3, Article 2, § 2(2) (Mar 1969). Paillette
explained, "[W]e didn't want to leave any doubt that it was not our intent
to require culpability for an element such as venue or statute of limitations
or something like that." Minutes, Criminal Law Revision Commission, Apr
18, 1969, 4. Therefore, the added words, "that necessarily requires a
mental state," were intended to convey a specific and defined meaning:
Every element that did not concern venue, jurisdiction, statute of limitations,
or the like, required a culpable mental state.

The commentary to the Oregon Criminal
Law Revision Commission Final Report also explains the committee's intent,
stating that the phrase "is designed to make it clear that the draft does
not require scienter with respect to an element relating solely to the
statute of limitations, jurisdiction, venue and the like." Commentary to
Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and
Report § 11, 9 (July 1970).

From this legislative history, we
conclude that, when a statute falls inside the criminal code and does not
explicitly prescribe a culpable mental state, or when, as here, the statute
falls outside the criminal code and does not reveal a clear indication that the
legislature intended to dispense with a culpable mental state requirement, a
culpable mental state is required for elements that are relevant to the harm or
evil incident to the conduct sought to be prevented by the law defining the
offense, and is not required for venue, jurisdiction, statute of
limitations, "and the like." And indeed, when the Supreme Court
first took up the statute, it reached that conclusion. In Blanton, the
defendant was convicted of unlawfully furnishing marijuana to a minor. The
Supreme Court wrote:

"As the Court of Appeals noted, the
qualifying phrase 'that necessarily requires a culpable mental state' * * *
introduces a confusing appearance of circularity in the text. The court
concluded that the phrase apparently was meant to distinguish those elements
defining the substance or quality of the forbidden conduct from others
relating, in the explanation of the Criminal Law Revision Commission, 'solely
to the statute of limitations, jurisdiction, venue and the like,' and the state
offers no contrary explanation. There is no question that the age of the
recipient is a material element of the offense * * *."

Blanton, 284 Or at 595 (footnote omitted). Therefore,
based on the legislative history of ORS 161.095 and ORS 161.115, the phrase
"that necessarily requires a culpable mental state" requires us to
determine whether the element in question concerns the substance or quality of
the crime--the harm or evil sought to be prevented--or whether the element
concerns venue, jurisdiction, statute of limitations, or something similar. In
this case, we must determine whether defendant's status as a felon relates to
the evil or harm that the legislature enacted the statute to prevent, or
whether it is similar to venue, jurisdiction, or the statute of limitations.

We held in Van Norsdall, 127
Or App at 305, that "[t]he status of being a felon" is an element
that relates to venue, jurisdiction, statutes of limitation and the like and
that, therefore, no scienter requirement attached to that element. That
holding was wrong, as this court recognized in Andrews, 174 Or App at
366. We observed that the outcome in Van Norsdall rested on the
erroneous premise that elements relating to "conduct" were material
and required scienter while elements relating to "attending
circumstances" did not. Id. That distinction, we held, could not
be reconciled with the legislative hostility to strict liability nor with the
Supreme Court's opinion in Blanton, where the court held that, in
prosecuting a person for furnishing drugs to a minor, the state had to prove
that the defendant knew the recipient's age. Blanton, 284 Or at 595.
Clearly, the age of the recipient could not be characterized as the defendant's
"conduct"; rather, it was an "attending circumstance," and
a material element requiring a culpable mental state nonetheless. Id.

To reconcile the case law with Blanton
and the applicable statutes, we held in Andrews, 174 Or App at 356,
that, "when a particular circumstance renders otherwise innocent conduct
criminal, the existence of that circumstance is a material element for which
the state must prove a culpable mental state, unless there is a clear
legislative indication that such proof of scienter is not
required." That principle also reconciles the case law with the
legislative history. Andrews holds that the state must prove a culpable
mental state with respect to acts or circumstances that transform innocent
conduct into criminal conduct. Such acts or circumstances define the harm or
evil sought to be prevented by the offense. Andrews also holds that the
state need not prove a culpable mental state with respect to
circumstances that do not transform innocent conduct into criminal
conduct; venue, jurisdiction, statutes of limitations and the like fall into
that category. The MPC, Blanton, and Andrews dichotomies are
functionally identical.

As applied to ORS 166.270(1), that
principle compels the conclusion that, contrary to what we held in Van
Norsdall, a person's status as a felon is a material element for which a
culpable mental state is necessary. That status goes to the evil at which the
statute is directed: firearms in the hands of individuals who have at one time
shown an inability to conform to the criminal law and might therefore be
considered more dangerous than others. By the same token, the element of being
a felon transforms otherwise innocent conduct into a crime; a similarly
situated nonfelon may possess or attempt to possess a firearm without violating
the law.

In Andrews, we
"disavow[ed] Van Norsdall's analysis" but did not
overrule the case itself, because Andrews dealt with a Portland City
Code provision and focused on an element prohibiting a person from carrying a
loaded weapon in public and provided no occasion to evaluate the felon in
possession statute in light of its legislative intent. Andrews, 174 Or
App at 365-66 (emphasis in original). This case now presents that occasion.
Our review of the text, context, and legislative history of ORS 166.270(1)
requires us to overrule Van Norsdall and hold that the court erred by
instructing the jury in such a way as to allow it to return a guilty verdict
without having found that defendant knew or should have known, when he
attempted to purchase the shotgun, that he had been convicted of a felony.

"Any person who has been
convicted of a felony under the law of this state or any other state, or who
has been convicted of a felony under the laws of the Government of the United
States, who owns or has in the person's possession or under the person's
custody or control any firearm commits the crime of felon in possession of a
firearm."

ORS 161.405(1) provides:

"A person is guilty of an
attempt to commit a crime when the person intentionally engages in conduct
which constitutes a substantial step toward commission of the crime."

2.ORS
161.005 lists statutes that "shall be known and may be cited as Oregon
Criminal Code of 1971." ORS 166.270 is not listed. But see State v.
Wolfe, 288 Or 521, 525 n 3, 605 P2d 1185 (1980):

"The legislative history indicates that the
provision for offenses 'outside the Oregon Criminal Code' was designed to cover
the great variety of regulatory statutes that contain provisions for
enforcement by criminal prosecution, and particularly to avoid strict liability
for offenses potentially punishable by imprisonment. See Minutes of the
Criminal Law Revision Commission, June 17, 1969, pp 40-42, and September 12,
1969, pp 2-3.

"The sections of ORS chapter 166 dealing
with weapons, of which ORS 166.275 is one, were eventually excluded in the
process of getting the criminal law revision ready for legislative enactment,
but not because they were regarded as extraneous to the criminal code. Thus
although they are among those sections that were not made part of the 'Oregon Criminal
Code of 1971,' see ORS 161.005, it does not necessarily follow that they
are 'statutes outside the Oregon Criminal Code' as referred to in ORS
161.105."

"What the Commission was aiming at with the
provision that would become ORS 161.105 was the gaggle of miscellaneous
offenses located throughout the Oregon Revised Statutes known affectionately as
'the .990 crimes.' These were offenses tacked on to the end of statutory
chapters devoted to substantive concerns other than the criminal law; because
they normally were located at the end of such chapters, they commonly had
section numbers ending in '.990' or '.995.'"

3.The
state relies on the legislative history of a 1989 amendment to ORS 166.270(4),
which is not at issue in this case. The only changes that the 1989 amendment
made to ORS 166.270(1), the statute at issue in this case, were to elaborate on
the type of firearm that a felon could not possess and to substitute the word
"felon" for the word "exconvict." Or Laws 1989, ch 839, §
4(1).